Plummeting In The Swamps Of Stereotype: Verdicts Premised On Antiquated Perceptions

In one such instance, recently, the High Court of Kerala, while exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 ("CrPC"), quashed a criminal proceeding against an accused, charged under Section 450, 370, 363, 376(2)(n) of the Indian Penal Code, 1860 ("IPC") read with Sections 4 (read with Section 3(a)) and 6 (read with Section 5(1)) of the Protection of Children from Sexual Offences Act, 2012 ("POCSO Act"), on the ground that the said accused and the prosecutrix had entered into a matrimonial relationship. While passing its verdict, Court opined that there was, "no purpose in continuing the proceedings. Even if the trial court is allowed to proceed with the trial of the case, it is sure that material witness…are not going to support the case…it would be a futile exercise to continue the proceedings." Significantly, the said decision (along with other similar orders) was/ were subsequently recalled by the Court under an acknowledgement that at the time of passing of said order it, "had not noticed the decision….in Gian Singh v. State of Punjab and Another [2012(4) KLT 108]…court has also stated that heinous and serious offence of mental depravity or offences like murder, rape, dacoity etc., cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute." Ostensibly, in an attempt to whitewash the embarrassment, the subsequent decision was labeled by the Judge as an order of recall, in distinction to review, by holding, "when the dictum laid down by the Hon'ble Supreme Court is not considered, it is a serious matter and therefore, there is no legal impediment in recalling the orders." (See order here) However, by the time the error was rectified, the factum of Judge's inconsiderateness towards the seriousness of the issue involved had become quite apparent. Even more distressing was the fact that the said decision was rendered by the High Court of Kerala, quite close in time to an earlier decision of the High Court of Delhi in Dinesh Sharma & Ors. v. State & Anr., wherein the court, under similar circumstances, unreservedly refused to exercise its inherent jurisdiction by appreciating the settled law and by, inter alia, holding, "FIR cannot be quashed on the ground that the victim after attaining majority has decided to compromise the matter with the accused." Unquestionably, Kerala High Court's earlier decision was not only quite appalling, rather, went antagonistic to judicial conscience and was demonstrative of an extremely constricted thought process.

Unpromisingly, other extremely disquieting decisions, demonstrating court's blatant disregard of the scope and purpose of legal enactment/ provisions and premised solely on technicalities were rendered by Bombay High Court in Libnus v. State of Maharashtra and Satish v. State of Maharashtra. Significantly, in the former case, High Court erroneously set aside the conviction of the accused under Sections 8 and 10 of POCSO Act, inter alia, under an observation, "acts of 'holding the hands of the prosecutrix', or 'opened zip of the pant' as has been allegedly witnessed by PW-1, in the opinion of this Court, does not fit in the definition of 'sexual assault'." Further, regrettably, in the latter case, accused's conviction under POCSO Act was set aside under an increasingly repulsive noting,"[a]dmittedly, it is not the case of the prosecution that the appellant removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin to skin with sexual intent without penetration." Unfortunately, the genesis of these decisions utterly negate Supreme Court's repeated affirmations regarding the responsibility of courts in adopting a compassionate approach in dealing with the cases involving sexual harassment, molestation, etc. At the same time, these pronouncements are hostile to the purpose behind the enactment of POCSO Act, which is, "to treat the minors as a class by itself and treat them separately so that no offence is committed against them as regards sexual assault, sexual harassment and sexual abuse." Pertinently, though, one of the said decisions of the High Court of Bombay was, subsequently, stayed by the Apex Court, however, this did not wipe away the blemish which was placed on the standing of court(s), by then. Added to this embarrassment and an additional illustration of a rudimentary approach adopted by judge(s) were the remarks of the erstwhile Chief Justice of Supreme Court, reportedly, asking an accused-rapist to marry a victim in order to purge from his criminality. Distressingly, emanating from one of the top judges of the Apex Court of the country, these remarks are self-evident of a patriarchal, formulaic and stereotypical rumination.

Comparable decision, exhibiting an orthodox approach and an abject disregard towards gender-sensitization, was passed by the High Court of Madhya Pradesh in Vikram v. The State of Madhya Pradesh, dealing with a bail application of an accused charged with the offences under sections 452, 354-A, 354, 323 and 506 of IPC. Outrageously, in the instant case, Court allowed the said bail application, inter alia, on a condition that the accused, "along with his wife shall visit the house of the complainant with Rakhi thread/ band… and request the complainant to tie the Rakhi band to him with the promise to protect her to the best of his ability for all times to come. He shall also tender Rs… to the complainant as a customary ritual usually offered by the brothers to sisters on such occasion and shall also seek her blessings." Needless to say, this decision, which was justly and widely censured by masses, was set aside in an appeal by the Supreme Court, inter alia, remarking, "[u]sing rakhi tying as a condition for bail, transforms a molester into a brother, by a judicial mandate. This is wholly unacceptable, and has the effect of diluting and eroding the offence of sexual harassment." In fact, the Apex Court duly acknowledged that the offence involved in the instant case was not a minor transgression, which could be remedied by way of an apology, rendering community service, tying a rakhi or presenting a gift to the survivor, or even promising to marry her, as the case may be. On the contrary, it was ruled that the law, "criminalizes outraging the modesty of a woman. Granting bail, subject to such conditions, renders the court susceptible to the charge of re-negotiating and mediating justice between confronting parties in a criminal offence and perpetuating gender stereotypes." Significantly, in its decision the Supreme Court not only desisted judges from expressing stereotypical opinions and trivializing the plight of victims/ survivors, rather, also emphasized on a need for gender sensitization amongst judges, lawyers, prosecutors, etc. Accordingly, the National Judicial Academy was, inter alia, requested to, "devise, speedily, the necessary inputs which have to be made part of the training of young judges, as well as form part of judges' continuing education with respect to gender sensitization, with adequate awareness programs regarding stereotyping and unconscious biases that can creep into judicial reasoning."

Comparatively, in the same league of discreditable precedents, quite recently, the High Court of Punjab & Haryana rendered contradictory opinions, when posed with the issue regarding the grant of police protection to 'live-in' couple(s). This, in turn, occasioned into making a reference by a single judge of the Court to a larger bench, inter alia, seeking clarity regarding, 'Whether such protection can be granted to two persons, living together, without examining their marital status?' Significantly, in one of the earlier conflicting decisions, police protection was refused by Court under an observation, "if such protection as claimed is granted, the entire social fabric of the society would get disturbed." Similarly, on another occasion, High Court refused to grant any indulgence by noting, "the petitioners in the garb of filing the present petition are seeking seal of approval on their live-in-relationship, which is morally and socially not acceptable.." Per contra, the Court, in Soniya & Anr. v. State of Haryana & Ors., while adopting a diametrically opposite view, observed, "live in relationship may not be acceptable to all, but it cannot be said that such a relationship is an illegal one or that living together without the sanctity of marriage constitutes an offence." Significantly, in the said decision the High Court fittingly acknowledged the ground realities, individual's choice of partner(s), prevailing concerns regarding honour killing and the ambits of State's obligation under Article 21 of the Constitution of India to hold, "[i]t would be a travesty of justice in case protection is denied to persons who have opted to reside together without the sanctity of marriage, and such persons have to face dire consequences at the hands of persons from whom protection is sought. In case such a course is adopted and protection denied, the courts would also be failing in their duty to provide its citizens a right to their life and liberty as enshrined under Article 21 of the Constitution of India and to uphold to the Rule of law." Similarly, in Pardeep Singh & Anr. v. State of Haryana & Ors., it was observed by the High Court that live-in-relationship is neither, "prohibited [in law] nor does it amount to commission of any offence and thus, in my considered view such persons are entitled to equal protection of laws as any other citizen of the country." Understandably, these incongruent opinions/ directives were thoroughly unwarranted, especially where issues involved State's obligation under Article 21 of the Constitution, on one hand, and the corresponding right with every individual, on the other. Unfortunately, the larger issue involved in these cases was greatly diluted on personal perception of certain judges, notwithstanding the repeated avowals of the Apex Court that a, "live-in or marriage-like relationship is neither a crime nor a sin though socially unacceptable in this country."

Justice R.M. Lodha once remarked, "[a] Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. When a litigant enters the courtroom, he must feel secured that the Judge before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration." Clearly, society expects high degree of standards from judges, in contrast to ordinary men. However, it is not enough that a judge is immune to external coercive forces. In fact, while performing an obligation as an adjudicator, it is expected that courts are invulnerable to their preconceptions and prejudices. It is well accepted that law is ever-evolving and changes its hues to meet the needs of evolving civilizations. Therefore, in the pursuit of such advancement, courts cannot remain mere spectators, rather, must incessantly play a proactive role in this quest, forging new means and ways to evolve new jurisprudence in the process. Understandably, such tasks would entail judges to strip off their antiquated perceptions and instead, develop dynamic reasoning, constitutional morality, scientific approach, neutrality, etc. At the same time, courts cannot plead ignorance of the established and underlying principles of law, imminent call for justice, evolution of societal thought processes and expectation, etc., while passing their resolutions. Supreme Court has continually avowed, "Judges, therefore, should respond to the human situations to meet the felt necessities of the time and social needs; make meaningful the right to life and give effect to the Constitution and the will of the legislature. This Court as the vehicle of transforming the nation's life should respond to the nation's needs, interpret the law with pragmatism to further public welfare…" Undeniably, "judges are not infallible; they are humans and they often err". However, it would be nothing less than a failing of democracy if judges' personal discernments become the sole reason of misery and deprivation of masses. Doubtlessly, progressive societies cannot be permitted to plummet into the swamps of stereotypes, rather, must persistently evolve and rise above antiquated perceptions.